The Herald Banner, Greenville, TX

Opinion

December 4, 2012

Defining probation testimony by witnesses

GREENVILLE — My mother died two years ago, and we are just now getting around to selling her house. Because her will was never probated, we have been told we need to do that to get clear title. We have her original will, but it was signed in 1974 in Delaware.  When I probate her will, do I have to get the witnesses who signed it to come to Texas to testify? — Chris, Caddo Mills

Under Texas law, out-of-state witnesses are not required to come to Texas to testify to open probate.

Usually, a properly-drafted Last Will and Testament will be “self-proved.” That means that it will include an affidavit in a specific form that proves authenticity by way of witness signatures and notary stamp. If your mother’s will is appropriately self-proved under Texas law, you will not need testimony from any of the witnesses.

If the will was defectively prepared, or was prepared in a jurisdiction with different rules for self-proving affidavits, you still may not need a witness to come to Texas. If you can contact a signing witness and obtain their address, you or your attorney can send the witness a notice for interrogatories by written questions which will be admissible in court to prove authenticity.

Sometimes wills include a self-proving affidavit, but have not been signed by the deceased person. In that case, you will likely need the same sort of written interrogatories.

If you do have a live witness testify as to the will’s authenticity, a question may be raised by the judge or a party fighting the probate as to how many of the signing witnesses must testify. Even though the law generally requires two witnesses to the actual signing, only one of them is required to testify in order to prove the will’s authenticity in court.

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